[2018] KEHC 8694 (KLR)
The court found that the five-year sentence imposed on the appellant for stealing three camels was excessive, particularly considering the nearly three years already served and the legislative context regarding remission of sentences. The court agreed with the DPP that the time served constituted sufficient...
Source-derived case information.
- Citation
- [2018] KEHC 8694 (KLR)
- Parties
- Appellant: Richard Kimyugu Kawertoi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 179 of 2017
- Procedural Posture
- Criminal Appeal / Sentence Appeal; Post Conviction
- Outcome
- sentence reduced; appellant to be released immediately
- Judges
- EM Muriithi
- Legal Topics
- Sentencing Principles, Remission of Sentence, Stock Theft, Appeal on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Kimyugu Kawertoi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Sentence Appeal; Post Conviction
Legal Issues
- 1 Whether the sentence of five years imprisonment for stealing stock was excessive in the circumstances.
- 2 Whether the appellant was entitled to remission or reduction of sentence given legislative changes.
Ratio Decidendi
The court found that the five-year sentence imposed on the appellant for stealing three camels was excessive, particularly considering the nearly three years already served and the legislative context regarding remission of sentences. The court agreed with the DPP that the time served constituted sufficient punishment and, exercising its powers under section 354(3)(b) of the Criminal Procedure Code, reduced the sentence to enable the appellant's immediate release. The court also considered but ultimately did not adopt the suggestion of a non-custodial sentence due to the negative probation report regarding the appellant's lack of fixed abode.
Court Disposition
sentence reduced; appellant to be released immediately
Orders
- The sentence of imprisonment for five years is reduced to the period already served.
- The appellant shall be released from custody forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
HCCRA NO. 179 OF 2017
RICHARD KIMYUGU KAWERTOI..........................APPELLANT
VERSUS
REPUBLIC...........................................................RESPONDENT
JUDGMENT
1. The appellant who was on 30/1/2015 convicted of stealing stock contrary to section 278 of the Penal Code and sentenced to imprisonment for 5 years, appeals from the sentence without challenging the conviction.
2. At the time of hearing, the appellant had already served (2) years and 10 months and he sought that his sentence be reduced pointing out that he had the benefit of revision. The court noted that his sentence was passed during the one year gap between 2014 – 2015 when the provision for remission under section 46 of the Provisions Act had been removed by repeal only to be reinstated by the Statute Law (Misc. Amendment) Act 2015.
3. The DPP did not oppose the appeal on the sentence and Ms Macharia Assistant DPP considered that the time served by the appellant was sufficient punishment for the offence but suggested that the appellant may be punished by a non-custodial sentence for the remaining term.
4. The pre-sentence Probation Officer’s Report was not positive for non-custodial sentence observing that the appellant had no fixed abode as he kept “changing residence among relatives in various areas within East Pokot Sub-county.”
Orders
5. Having considered the offence of stealing (3) camels valued at Ksh. 142,000/- and the fact that the appellant has served close to (3) years imprisonment (by 30/1/2018), I would agree with the DPP that the appellant has been sufficiently punished for the offence of stealing stock contrary to section 278 of the Penal Code.
6. Accordingly, I find the sentence of imprisonment for (5) years to be excessive and reduce the same pursuant to section 354 (3) (b) of the Criminal Procedure Code to such period as will enable the appellant to be released from custody immediately.
DATED AND DELIVERED THIS 16TH DAY OF JANUARY, 2018
EDWARD M. MURIITHI
JUDGE
Appearances: -
Appellant in person
Ms Macharia Assistant DPP